Citation Nr: 21004159 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-56 009A DATE: January 26, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disorder (COPD) is denied. Entitlement to service connection for anemia residuals is granted. Entitlement to service connection for a heart disorder, to include chronic heart failure and peripheral vascular disease, is denied. Entitlement to service connection for carotid artery disease is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a prostate disorder, to include benign prostate hyperplasia, is remanded. Entitlement to service connection for a right lower extremity musculoskeletal disorder, to include arthritis and joint pain, is remanded. Entitlement to service connection for a left lower extremity musculoskeletal disorder, to include arthritis and joint pain, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is presumed as having been exposed to herbicides during service in Vietnam. 2. The Veteran has chronic obstructive pulmonary disorder (COPD) that was incurred years after his separation from service and that did not result from an in-service injury, illness, or event, to include herbicide exposure. 3. The Veteran has iron deficiency anemia that resulted from service-connected renal disease. 4. The Veteran had an acute episode of congestive heart failure years after his separation from service that did not result from an in-service injury, illness, or event, to include herbicide exposure. 5. The Veteran has carotid artery disease that was neither incurred during service or caused by an in-service injury, illness, or event, to include herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 2. The criteria for service connection for anemia residuals are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 3. The criteria for service connection for a heart disorder, to include chronic heart failure and peripheral vascular disease, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). 4. The criteria for service connection for carotid artery disease are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1965 through November 1967, to include service in Vietnam from June 1966 through June 1967. The issues on appeal arise out of the Veteran’s November 2015 claim and the agency of original jurisdiction’s (AOJ’s) June 2016 rating decision. The issues were remanded previously by the Board for further development in November 2019. The AOJ has undertaken the development action ordered by the Board and the matter now returns to the Board for review. Service Connection Pertinent to all issues decided here on appeal, service connection is generally established where the evidence shows three essential elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The foregoing basic criteria for service connection can be met in different ways according to different theories that are recognized by the regulations. Service connection may also be granted for a disease that was first diagnosed after a veteran’s separation from service when all of the evidence, including that pertinent to service, establishes that the disease was actually incurred during service. 38 C.F.R. § 3.303 (d). Also, service connection for certain listed chronic diseases listed in the regulations under 38 C.F.R. § 3.309 (a) may be awarded on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability became manifest to a compensable degree within one year of separation from active duty. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (a). An alternative method of establishing the second and third elements of service connection for those “chronic conditions” mentioned above is through an evidentiary showing of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303 (b). Also, 38 C.F.R. § 3.309(e) identifies specific diseases that shall be service-connected for those veterans who were exposed to an herbicide agent during active military, naval, or air service, even in the absence of any record of such disease occurring during service, provided that certain requirements under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. Here, the service department records show that the Veteran served in Vietnam from June 1966 through June 1967. He is presumed as having been exposed to herbicides by virtue of such service. Finally, service connection may also be established for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a). Also, a disability that is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or alternatively, whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for COPD. The Veteran raises alternating theories for his claim for service connection for COPD. In a March 2016 statement, he states that his COPD was diagnosed in approximately January 1999 and asserts that his in-service herbicide exposure made him predisposed to developing COPD. In a later August 2016 statement, he appears to suggest that current regulations provide for service connection for COPD for those Veterans who were exposed to herbicides during service, pending the results of pulmonary function testing. The post-service private treatment records from Broad Street Family Health Center indicate that the Veteran was diagnosed with COPD sometime in 2011 and that he has remained under treatment for COPD since that time. The evidence, however, does not show that the Veteran’s hypertension is related to his active duty service. Although the Veteran is presumed as having been exposed to herbicides by virtue of his documented service in Vietnam, the Board observes that COPD is not among those disorders that are presumed under the regulations as having been caused by herbicide exposure. As such, service connection for COPD may not be granted to the Veteran on a presumptive basis under 38 C.F.R. § 3.309 (e). Similarly, COPD is not recognized under the regulations as a “chronic disease” under 38 C.F.R. § 3.309 (a). Accordingly, service connection for COPD also may not be granted to the Veteran based on the presumptions provided under 38 C.F.R. § 3.309 (a). As mentioned, the Veteran acknowledges that his COPD began after service. Consistent with the same, service treatment records show no indication that the Veteran ever reported or sought any treatment for any respiratory problems during service. Indeed, the records reflect no objective respiratory or pulmonary findings during any in-service treatment or during repeated in-service medical examinations. In conjunction with the same, the post-service treatment records indicate the initial treatment for COPD in 2011 at Broad Street Family Health Center. Chest x-rays taken in October 2014 revealed small bilateral pleural effusions that were consistent with “probable COPD.” Private treatment records dated April 2015 from Dr. H.S. document complaints of dyspnea, productive cough, and nocturnal hypoxemia that were caused by the Veteran’s COPD. Still, Dr. H.S. gave no opinion as to the etiology or cause of the Veteran’s COPD. Notably, she observed that the Veteran had a previous occupational history as a construction worker doing dry wall sanding and insulation and also previous work with brake linings. The Board notes also that the Veteran’s VA and private treatment records reflect a self-reported history by the Veteran of smoking. During an October 2020 examination, the examiner confirmed the Veteran’s COPD diagnosis. She opined, however, that it is less likely than not that the Veteran’s COPD was incurred during service or that it was caused by an in-service injury, illness, or event including the Veteran’s in-service herbicide exposure. As rationale, the examiner observed that there is no medical literature that supports any association between COPD and herbicide exposure. Moreover, she states, the Veteran had a long history of smoking, which is recognized by the medical literature as being the leading cause for COPD. The Board is sympathetic to the Veteran’s earnest belief that his COPD is related to in-service herbicide exposure. His assertion in that regard, however, is outweighed by the October 2020 examiner’s negative opinion, which is supported by the facts in the record and appears to reflect the current state of the medical literature. The preponderance of the evidence shows that the Veteran’s COPD was not incurred during service and did not result from an in-service injury, illness, or event, to include in-service herbicide exposure. The Veteran is not entitled to service connection for COPD. To that extent, this appeal is denied. 2. Entitlement to service connection for anemia residuals. The Veteran also claims entitlement to service connection for residuals associated with anemia. In support of his claim, he asserts in an August 2016 statement that his anemia has resulted from a kidney disorder that is itself secondary to diabetes. Indeed, service connection is in effect for the Veteran for diabetes and for renal disease associated with diabetes. The evidence shows that the Veteran does have iron deficiency anemia that has been caused by his chronic kidney disease. Post-service treatment records from Dr. W.N. show that the Veteran’s iron deficiency anemia was first detected following laboratory tests in January 2012. He has since been followed for iron deficiency anemia, as diagnosed by Dr. Y.L. in June 2014 that has been manifested by shortness of breath after exertion, fatigue, and dizziness. A July 2015 private treatment record from Dr. S.M. characterized the Veteran’s condition as being “anemia of chronic kidney disease.” Indeed, a March 2016 medical opinion characterized the Veteran’s condition as “kidney disease including anemia.” Overall, the evidence shows that the Veteran has iron deficiency anemia that resulted from his service-connected renal disease. As such, the Veteran is entitled to service connection for residuals associated with anemia on a secondary basis, pursuant to 38 C.F.R. § 3.310. To that extent, this appeal is granted. 3. Entitlement to service connection for a heart disorder, to include chronic heart failure and peripheral vascular disease. The Veteran claims entitlement to service connection for a heart disorder. He asserts in his March 2016 claim that his claimed heart disorder began in approximately January 1999 and that it resulted from herbicide exposure during service. Again, it is undisputed that the Veteran served in Vietnam and is therefore presumed as having been exposed to herbicides during such service. The post-service treatment records from Broad Street Family Health Center mention cardiovascular disease beginning in June 2009. Treatment records from Dr. W.N. dated October 2014 reflect a diagnosis for congestive heart failure. The regulations identify ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction: atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina) as being among the diseases that may be presumed as having resulted from in-service herbicide exposure. Nonetheless, the regulations do not identify the Veteran’s specific heart condition (congestive heart failure) as being among those diseases. As such, service connection for the Veteran’s congestive heart failure may not be granted presumptively based on the Veteran’s in-service herbicide exposure under 38 C.F.R. § 3.309 (e). Subject to the same, the evidence shows that the Veteran’s congestive heart failure was not incurred during service, and, that it did not result from an injury, illness, or event that occurred during service. Consistent with the Veteran’s assertion that his heart condition began after service, the service treatment records indicate no in-service treatment for any heart condition and reference no heart-related complaints by the Veteran or any objectively observed cardiac abnormalities. As mentioned, the post-service records show that the Veteran has been followed for congestive heart failure; however, his treating physicians offer no opinion as to the etiology or cause for his congestive heart failure. In a March 2016 addendum medical opinion, the reviewing clinician noted that the Veteran’s medical history indicates that the Veteran had an acute episode of congestive heart failure in October 2014. She observed further that an echocardiogram study conducted later that month showed ejection fraction findings that were normal and therefore indicative that the Veteran’s episode of congestive heart failure was acute and transitory. In conjunction with the same, the examiner noted that the Veteran’s history was positive for multiple known risk factors for congestive heart failure, including age, longstanding obesity, sedentary lifestyle, history of smoking, severe COPD, sleep apnea, and hyperlipidemia. The reviewing clinician’s opinion is not rebutted by contrary evidence or opinions in the record. The Board therefore finds that opinion persuasive. The preponderance of the evidence shows that the Veteran’s congestive heart failure was not incurred during service and did not result from an in-service injury, illness, or event, to include in-service herbicide exposure. Moreover, the evidence shows that the Veteran’s congestive heart failure was diagnosed initially many years after the Veteran’s separation from service. Additionally, while the evidence indicates that COPD is a risk factor for heart disease, service connection for COPD is denied in the instant condition. The Veteran is therefore not entitled to service connection for a heart disorder, to include chronic heart failure and peripheral vascular disease. 38 C.F.R. §§ 3.303 and 3.309 (a). To that extent, this appeal is denied. 4. Entitlement to service connection for carotid artery disease. The Veteran also claims entitlement to service connection for carotid artery disease. Like his claim for service connection for a heart condition, he asserts that his condition began in January 1999 but asserts that his in-service herbicide exposure made him predisposed to developing carotid artery disease. To that end, he seems to be asserting that his carotid artery disease resulted from his in-service herbicide exposure. Carotid artery disease is not among those disorders that are presumed under the regulations as having been caused by herbicide exposure. As such, service connection for carotid artery disease may not be granted to the Veteran on a presumptive basis under 38 C.F.R. § 3.309 (e). Also, carotid artery disease is not recognized under the regulations as a “chronic disease” under 38 C.F.R. § 3.309 (a). Accordingly, the Veteran’s claim for service connection for carotid artery disease also may not be granted based on the presumptions provided under 38 C.F.R. § 3.309 (a). As mentioned, the Veteran does not contend that his carotid artery disease began during service. Indeed, the service treatment records make no mention of any complaints, findings, diagnoses, or treatment for carotid artery disease during service. The post-service treatment records show that a carotid artery ultrasound conducted in January 2014 by Dr. R.G.B. and Dr. C.R.H. showed mild stenosis in the right internal carotid artery, heterogeneous plaques in the common, external, and internal carotid arteries bilaterally, and probable stenosis. Repeat studies conducted in January 2015 and February 2016 showed similar findings. In a March 2016 medical opinion, the reviewing clinician opined that the Veteran’s carotid artery disease are more likely than not the result of a combination of non-service-related factors that include age, longstanding obesity, sedentary lifestyle, history of smoking, severe COPD, obstructive sleep apnea, and hyperlipidemia. The Board is mindful of the Veteran’s belief that his carotid artery disease resulted from in-service herbicide exposure. Regardless, the Veteran is not competent to offer a probative opinion as to the existence of such an etiological relationship. As such, the Board is unable to assign significant weight to the Veteran’s assertion. In contrast, the March 2016 negative opinion appears to be consistent with the facts shown in the record and is not rebutted by any contrary probative opinions. For these reasons, the Board is persuaded by the March 2016 opinion. The preponderance of the evidence shows that the Veteran’s carotid artery disease was not incurred during service and did not result from an in-service injury, illness, or event, to include herbicide exposure. The Veteran is not entitled to service connection for carotid artery disease. To that extent also, this appeal is denied. REASONS FOR REMAND 1. Addendum opinion for hypertension. The Veteran asserts in an August 2016 statement that his hypertension is related etiologically to his service-connected diabetes. As noted previously, service connection is in effect for the Veteran for diabetes. Accordingly, his August 2016 statement raises the question of whether service connection for hypertension may be granted on a secondary basis under 38 C.F.R. § 3.310. Subject to the same, the records from Broad Street Family Health Center show that the Veteran has remained under treatment for hypertension since December 2004. The evidence, however, includes no opinion as to whether the Veteran’s hypertension has resulted from or been aggravated by his service-connected diabetes. During an October 2020 examination, the examiner confirmed the Veteran’s hypertension diagnosis based on history demonstrated in the record. She provided negative etiology opinions concerning a possible etiological relationship between the Veteran’s hypertension and his active duty service and in-service herbicide exposure. She gave no opinion, however, as to whether the Veteran’s hypertension was caused by the Veteran’s diabetes, or, has been aggravated by the Veteran’s diabetes. VA must obtain an addendum opinion as to whether such a relationship exists. 38 C.F.R. § 3.159 (c)(4). 2. Addendum opinion for headaches. The Veteran also contends in his August 2016 statement that he has headaches that may be related etiologically to his service-connected diabetes. During an October 2020 examination, the examiner opined that the Veteran was having common headaches that were neither incurred during service nor caused by an in-service injury, illness, or event. She gave no opinion, however, as to whether the Veteran’s headaches are caused by his diabetes, or, has been aggravated by his diabetes. VA must obtain an addendum opinion as to whether such a relationship exists. 38 C.F.R. § 3.159 (c)(4). 3. Addendum opinion for benign prostate hyperplasia (BPH). The Veteran contends in a March 2016 statement that he has BPH that he believes is related etiologically to in-service herbicide exposure. The evidence in the record shows that the Veteran has remained under treatment for BPH at Broad Street Family Health Center and with Dr. J.P. since 2009. During an October 2020 examination, the examiner diagnosed BPH while noting that there is no indication in the record that the Veteran has ever received a cancer diagnosis. On that basis alone, she concluded that the Veteran’s BPH was not likely incurred during service or caused by an in-service injury, illness, or event. In the absence of further rationale or explanation, it is unclear to the Board as to why the absence of a cancer diagnosis necessarily render it unlikely that the Veteran’s BPH is related etiologically to his active duty service. VA must therefore obtain an addendum opinion asking for further clarification as to the reasons for the examiner’s negative opinion. 38 C.F.R. § 3.159 (c)(4). 4. Musculoskeletal examination for the Veteran’s lower extremities. As noted by the Board in the previous November 2019 remand, an October 2014 treatment record from Dr. P.H.C. reflects the Veteran’s diagnosis for generalized arthritis. He asserts in his August 2016 Notice of Disagreement that he has major joint pain that he believes is secondary to his “diabetic anemia condition.” In conjunction with the same, a September 2014 treatment record from Broad Street Family Health Center notes that “associated symptoms [of anemia] include gait disturbance and joint pain.” Given the foregoing assertions and evidence, the record raises questions whether the Veteran has arthritis and joint pain in his lower extremities, and if so, whether such arthritis and joint pain are related etiologically to the Veteran’s service-connected anemia. Despite the same, the Veteran has yet to undergo a musculoskeletal examination of his lower extremities to determine the nature of any musculoskeletal disorders and whether any diagnosed disorders are related etiologically to his active duty service and/or service-connected anemia. Such an examination should be scheduled for the Veteran at this time. 38 C.F.R. § 3.159 (c)(4). 5. Inextricably intertwined issues. Additional information and evidence obtained in the development ordered above and the ultimate disposition of the issues remaining on appeal will likely impact the Board’s analysis as to the Veteran’s entitlement to total disability rating based on individual unemployability (TDIU). In instances where a decision on one issue would have a significant impact upon the outcome of another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two issues are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). The issues of the Veteran's entitlement to TDIU is inextricably intertwined with the issues that remain on appeal. As such, the TDIU issue must be deferred, pending disposition of the other issues on appeal. The matters are REMANDED for the following action: 1. The Veteran should be asked whether he has additional evidence pertaining to his claims on appeal. Records for VA treatment received by the Veteran since August 2020 and any private treatment identified by the Veteran and not already of record should be obtained. If the records are not available, such unavailability should be documented in the record. The Veteran and his representative should be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review. 2. After the development ordered in Paragraph 1 is complete, return the claims file to the same VA examiner who conducted the October 2020 hypertension examination, if available. The examiner should be asked to review the claims file and provide an addendum opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s hypertension was: 1) caused by the Veteran’s diabetes, or, 2) has been aggravated by the Veteran’s diabetes. The examiner should provide a detailed rationale that explains fully the reasons for the given opinions. If determined necessary, schedule the veteran for a new hypertension examination. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should be asked to review the claims file and conduct all relevant tests and studies, provide a diagnosis relevant to the Veteran’s hypertension, and provide opinions as to the questions posed above. 3. After the development ordered in Paragraph 1 is complete, return the claims file to the same VA examiner who conducted the October 2020 examination for the Veteran’s headaches, if available. The examiner should be asked to review the claims file and provide an addendum opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s headaches were: 1) caused by the Veteran’s diabetes, or, 2) has been aggravated by the Veteran’s diabetes. The examiner should be asked to review the claims file and provide an addendum opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran’s headaches were: 1) caused by the Veteran’s hypertension, or, 2) has been aggravated by the Veteran’s hypertension. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. If determined necessary, schedule the veteran for a new examination for his headaches. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should be asked to review the claims file and conduct all relevant tests and studies, provide a diagnosis relevant to the Veteran’s headaches, and provide opinions as to the questions posed above. 4. After the development ordered in Paragraph 1 is complete, return the claims file to the same VA examiner who conducted the October 2020 prostate examination, if available. The examiner should be asked to review the claims file and provide an addendum opinion that provides more detailed explanation and rationale regarding whether it is at least as likely as not that the Veteran’s benign prostate hyperplasia (BPH) was incurred during the Veteran’s active duty service, and/or caused by an in-service injury, event, or illness, to include herbicide exposure. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. If determined necessary, schedule the veteran for a new prostate examination. The claims file and a copy of this remand should be provided to the examiner for review. The examiner should be asked to review the claims file and conduct all relevant tests and studies, provide a diagnosis relevant to the Veteran’s BPH, and provide opinions as to the questions posed above. 5. After the development in Paragraph 1 is complete, schedule the Veteran to undergo a musculoskeletal examination of his lower extremities to determine the nature and etiology of any musculoskeletal disorders. The examiner should review the claims file in conjunction with the examination. The examiner should provide a diagnosis for any musculoskeletal disorders in his lower extremities, and for each diagnosis, opine as to whether it is at least as likely as not (at least a 50 percent probability) that the diagnosed disorder was: 1) incurred during service; 2) resulted from an in-service injury, illness, or event, to include herbicide exposure; 3) caused by or resulted from the Veteran’s service-connected disabilities, including diabetes, renal disease, and anemia; and/or 4) aggravated by the Veteran’s service-connected disabilities, including diabetes, renal disease, and anemia. The examiner should provide a detailed rationale that explains fully all of the reasons for the given opinions. 6. After completion of the above development, the issues on appeal should be readjudicated. If the determination remains averse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Lee The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.